Creative Services Agreement

This Master Creative Services Agreement (this “Creative Services Agreement”), is entered into by and between mmhmm inc., a Delaware corporation (“mmhmm”), and Customer, as of the Contract Start Date of the first Order Form and Statement of Work (“SOW”) entered into by mmhmm and Customer.

mmhmm and Customer may each be referred to herein as a “Party” and collectively as the “Parties.”

1. Services.

1.1 Creative Services. This Creative Services Agreement provides the terms for the engagement of mmhmm by Customer to consult with and/or provide Creative Services to Customer, as described in greater detail in an Order Form and Statement of Work (“SOW”). mmhmm’s Creative Services shall be provided hereunder at such times and places as shall be mutually agreed by mmhmm and Customer and more specifically provided in a SOW.

1.2 Services Subscription and Software Use. In the event the SOW includes a subscription or access to mmhmm Services and/or software, the mmmhmm Terms of Service (www.mmhmm.app/terms) and Privacy Policy (www.mmhmm.app/privacy) shall govern Customer’s use of such Services and/or software, and are hereby incorporated into this Creative Services Agreement. If there is any conflict between the Terms of Service and this Creative Services Agreement, the terms of this Creative Services Agreement shall govern with respect to matters relating solely to the Creative Services.

2. Compensation; Taxes.

2.1 Compensation. Each SOW shall provide for the amount and timing for payment of mmhmm’s compensation, and the mode of payment.  Except as otherwise provided in a SOW, mmhmm shall bear all of mmhmm’s own expenses arising from the performance under this Creative Services Agreement, including (without limitation) expenses for facilities, any subcontractors, workspace, supplies and the like.

2.2 Taxes.  mmhmm shall have sole responsibility for the payment of all taxes and duties as they pertain to mmhmm’s performance and receipt of payments under this Creative Services Agreement, including, without limitation, all payroll, withholding, self-employment, and income taxes.  All fees charged to Customer shall exclude and be separate and distinct from taxes that may apply to payment of such fees.

3. Engagement Requirements.

3.1 Independent Contractor.  mmhmm shall perform all Creative Services under this Creative Services Agreement as an independent contractor and not as an employee or agent of Customer.  Neither Party is authorized to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other Party, or to bind the other Party in any manner.

3.2 No Benefits.  As between mmhmm and Customer, mmhmm is responsible for payment or satisfaction of the wages, workers’ compensation, sick pay, holiday pay, paternity/adoption pay, government - mandated insurance contributions, pension provision, disability benefits, unemployment insurance or similar payments, or for withholding and paying employment taxes, as may be required for its personnel in connection with the engagement of mmhmm hereunder.

3.3 Cooperation. mmhmm shall perform its obligations under this Creative Services Agreement in a manner and within timelines consistent with established industry standards and any requirements set forth in the applicable SOW.  mmhmm shall cooperate with Customer’s personnel and observe all reasonable rules, regulations and security requirements of Customer concerning the safety of persons and property when mmhmm is working at Customer’s facilities and when using Customer’s computer systems or other equipment. Customer shall provide mmhmm, in advance of meetings, with accurate, unbiased, and sufficient information to enable review of the subject matter on which mmhmm is engaged, and shall promptly provide further information that mmhmm reasonably deems relevant to forming any conclusions relevant to the performance of its Creative Services, and acknowledges that timely exchange of information is critical to the success of the engagement.

4. Intellectual Property.

4.1 Ownership of Deliverable(s).  Subject to Customer’s delivery to mmhmm of the compensation required by the applicable SOW, and the other conditions and limitations set forth in this Section 4, Customer shall be the sole and exclusive owner of, and mmhmm agrees to assign, and does hereby assign, to Customer all of its right, title, and interest in and to, any Deliverable provided by mmhmm pursuant to a SOW; and all original works of authorship comprised therein that are protectable by copyright are “works made for hire,” as the term is defined in the United States Copyright Act (17 USCA, Section 101), to the extent applicable.

4.2 Third Party IP.  Notwithstanding Section 4.1, Customer shall not be assigned, and shall not own, any rights in any Third Party IP included in or delivered with any Deliverable that is identified in the applicable SOW. mmhmm shall reasonably cooperate with Customer obtaining direct rights to use any such Third Party IP.

4.3 Rights to Use mmhmm’s Methods.  Notwithstanding Section 4.1, Customer shall not be assigned, and shall not own, any mmhmm Methods included in any Deliverable.  mmhmm hereby grants to Customer, its successors, and assigns, the perpetual, royalty-free, worldwide, nonexclusive right and license under any Intellectual Property Rights owned by mmhmm in mmhmm Methods if and to the extent mmhmm Methods are incorporated in any Deliverable, or where the Deliverable is a derivative of or reliant upon the mmhmm Methods and such license is required by Customer to use, reproduce, distribute, sell, rent or otherwise dispose of, make derivative works of, display, perform or otherwise obtain the benefits anticipated from obtaining the Deliverable, including (without limitation) the right to authorize or sublicense others from time to time to do any or all of the foregoing.

4.4 Further Assurances.  mmhmm shall within a reasonable time after receipt of Customer’s written request and at Customer’s expense, execute and deliver to Customer those documents that Customer provides mmhmm that are reasonably necessary in order to fully and completely assign and transfer all rights, title, and interests in and to any Deliverable assigned to Customer hereunder.

4.5 Customer Brand Assets.  If any Creative Services requested by Customer require mmhmm to work with Customer’s brand assets including copyrighted works, and trade and service marks (“Customer Brand Assets”), Customer hereby grants mmhmm a limited license to use, reproduce, publish, and make derivative works of such brand assets for the purpose of providing the Creative Services and, unless otherwise specifically provided in the SOW, .

5. Protection of Confidential Information.

5.1 Confidential Information.  The Parties acknowledge that in connection with the Creative Services, mmhmm and Customer may each disclose (the “Disclosing Party”) to the other (the “Receiving Party”) their confidential and proprietary information and trade secrets (hereinafter, subject to the exceptions below, “Confidential Information”).  Such information may take the form of, for example: data concerning inventions or discoveries made by the Disclosing Party; the Disclosing Party’s know-how; key personnel, manufacturing, product and/or service strategies and processes; marketing plans; data from business operations and proposed initiatives; past, present, and future business plans; or forecasts of sales and sales data.  Notwithstanding the above, each Party acknowledges and agrees that none of the information described in this Section 5.1 will be considered Confidential Information for purposes of this Creative Services Agreement, unless the information is disclosed in writing and is clearly marked as confidential, or, where verbally disclosed by the Disclosing Party, is followed within ten business (10) days of such verbal disclosure by a written notice to the Receiving Party from the Disclosing Party confirming such disclosure and indicating the specific information in such disclosure that is the Disclosing Party’s Confidential Information.  Upon receipt of any such notice, the Receiving Party may object to such claim, in which event the Parties shall use good faith efforts to resolve any discrepancy or issue in identifying each Party’s Confidential Information. Notwithstanding the above, each Party acknowledges and agrees that Confidential Information shall not include information which: (i) was at the time of disclosure to the Receiving Party part of the public domain by publication or otherwise; or (ii) became part of the public domain after disclosure to the Receiving Party by publication or otherwise, except by breach of this Creative Services Agreement by the Receiving Party; or (iii) was already lawfully in the Receiving Party’s possession at the time it was received; or (iv) was or is lawfully received by the Receiving Party from a third Party who was under no obligation of confidentiality with respect thereto; or (v) was or is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.

5.2 Nondisclosure or Use.  Subject to the terms and conditions of this Creative Services Agreement, the Receiving Party hereby agrees that during the term of this Creative Services  Agreement and for a period of three (3) years thereafter, it shall not: (i) divulge, publish, or otherwise disclose any Confidential Information without the Disclosing Party’s prior written consent, which consent shall not be unreasonably withheld; or (ii) use any such Confidential Information for any purposes other than fulfilling its responsibilities under this Creative Services Agreement. Notwithstanding the foregoing, if either Party becomes legally compelled to disclose any Confidential Information, prior to such disclosure, (i) the Receiving Party shall provide the Disclosing Party with advance written notice and information relevant to such legal action reasonably necessary to inform the Disclosing Party of such action (unless legally prohibited), so that the Disclosing Party may seek a protective order or other appropriate remedy to protect its interest in the Confidential Information, and (ii) the Receiving Party shall furnish only that portion of the Confidential Information that the Receiving Party’s counsel advises it is legally required to disclose, and only for such particular legal proceeding. Notwithstanding the foregoing, nothing in this Creative Services Agreement shall be construed to prevent the Receiving Party’s employees who access Confidential Information from using Residuals for any purpose and each Party may share the terms of this Creative Services Agreement on a confidential basis with its Board members, legal and financial advisors, key personnel involved in this engagement, and other third parties who have a legitimate need to know about them, including the disclosure of the existence and general nature of this Creative Services Agreement with its investors and prospective investors, lenders and acquirors, provided that such the Disclosing Party remains liable for any unauthorized disclosure by the third parties in question.  The term “Residuals” means information of a general nature, such as general knowledge, professional skills, know-how, work experience or techniques, that is retained in the unaided memories (without conscious memorization or subsequent reference to the material in question) of the Receiving Party’s employees who have had access to Confidential Information.  Memory shall be considered unaided if the employee or contractor has not intentionally memorized the information contained within the Confidential Information for the purpose of retaining and subsequently using or disclosing same.

6. Warranties.

6.1 Performance.

(a) Each Party hereby represents and warrants to the other that: (i) it has the requisite power and authority to execute, deliver and perform this Creative Services Agreement and to consummate the transactions contemplated hereby; (ii) this Creative Services Agreement has been duly authorized, executed and delivered by such Party, constitutes the legal, valid and binding obligation of such Party and is enforceable against such Party in accordance with its terms, except to the extent such enforceability may be limited by bankruptcy, reorganization, insolvency or similar laws of general applicability governing the enforcement of the rights of creditors or by the general principles of equity (regardless of whether considered in a proceeding at law or in equity); (iii) it is not bound by any agreement or obligation (and will use good faith efforts to not enter into any agreement or obligation) that will materially interfere with the performance of its obligations under this Creative Services Agreement; and (iv) to its actual knowledge, but without investigation, no approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by it in order for it to enter into and perform its obligations under this Creative Services Agreement.

(b) mmhmm hereby represents and warrants to Customer that any Deliverable delivered to Customer pursuant to a SOW, in the form provided by mmhmm to Customer and used in accordance with the terms of the applicable SOW and any Terms of Service applicable to the mmhmm service, shall function in substantial accordance with the express specifications therefor set forth in the applicable SOW for a period of one (1) year after delivery to Customer (the “Warranty Period”).  Customer acknowledges and agrees that: (1) mmhmm’s sole obligation, and Customer’s sole remedy, with respect to any failure of the foregoing warranty shall be, at mmhmm’s option, (A) for mmhmm to attempt through commercially reasonable efforts and at mmhmm’s expense to correct such failure, provided such failure is promptly reported to mmhmm during the Warranty Period and Customer, upon mmhmm’s request, provides mmhmm with sufficient information to enable mmhmm to reproduce the failure in question, or (B) for mmhmm to refund those fees paid by Customer for the Deliverable; and (2) mmhmm provides a service that is dynamic and may include future functionality or features that are not compatible with any Deliverable provided pursuant to any SOW, unless and to the extent such SOW provides for ongoing support or other development services.

6.2 No Disabling Code.  mmhmm represents and warrants that no Deliverable will be designed to include any trap door, back door, timer, clock, counter or other limiting routine, instruction or design that would erase data or programming or otherwise cause any software or hardware to become inoperable or incapable of being used in the full manner for which it was designed and created, or provides mmhmm or any third party with access to or the ability to alter data or programming code (a "Disabling Code").  If any Disabling Code is identified by Customer or mmhmm in any Deliverable, Customer’s sole remedy shall be for mmhmm to: (i) take all steps necessary at mmhmm's sole cost to test a new copy of the Deliverable for the presence of any Disabling Code and (ii) furnish to Customer a new copy of the Deliverable without the presence of Disabling Code.

6.3 Disclaimers.  EXCEPT FOR THE EXPRESS WARRANTIES IN SECTIONS 6.1 AND 6.2, mmhmm AND CLIENT EACH HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND MMHMM SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND CLIENT ACKNOWLEDGES THE SERVICES ARE PROVIDED "AS IS.”

7. Indemnification.

Subject to the procedures and limitations set forth herein, mmhmm will defend Customer against any third party claim asserting that any Deliverable in the form delivered by mmhmm infringes any copyright of a third party, and shall pay any monetary judgments, reasonable and related attorneys' fees, and costs finally awarded to the third party for such infringement, or any amounts payable in settlement of such claim; provided, however, that mmhmm shall have no such obligation if and to the extent such claim arises from (i) a modification of the Creative Services or Deliverable by Customer or (ii) a combination, operation or use of the Creative Services or Deliverable with other software, hardware or technology not provided by mmhmm if the claim would not have arisen but for such combination, operation or use or (iii) any distribution, disclosure or use by Customer of any Creative Services or Deliverable, or any other asset licensed to Customer, that conflicts with any limitations or other restrictions set forth in this Creative Services Agreement or the applicable SOW.  The foregoing defense and indemnification obligations are subject to Customer: (i) notifying mmhmm promptly of such claim, (ii) reasonably cooperating and assisting in such defense and (iii) giving sole control of the defense and any related settlement negotiations to mmhmm, with the understanding that mmhmm may not settle any claim in a manner that admits guilt or otherwise prejudices Customer, without Customer’s prior written consent.  If any Deliverable is, or in mmhmm’s opinion, is likely to become, the subject of any infringement claim, then mmhmm may, at its expense and in its discretion: (i) procure for Customer the right to continue using the Deliverable; (ii) replace or modify the infringing Deliverable so that the Deliverable becomes non-infringing and remains materially functionally equivalent; or (iii) repurchase the particular Deliverable by refunding Customer the amount of compensation received by mmhmm for the Creative Services generating such Deliverable, in which event Customer’s rights in and to such Deliverable shall automatically terminate without further action by mmhmm or Customer.  THE PROVISIONS OF THIS SECTION 7 STATE MMHMM’S ENTIRE LIABILITY AND CLIENT’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES OR ANY DELIVERABLE INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

8. Liability Limitations; Force Majeure.

8.1 NO CONSEQUENTIAL DAMAGES.  IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING SENTENCE SHALL NOT, HOWEVER, ELIMINATE OR LIMIT THE LIABILITY OF EITHER PARTY WITH RESPECT TO ITS OBLIGATIONS UNDER SECTION 5.2 OF THIS CREATIVE SERVICES AGREEMENT.

8.2 FINANCIAL LIMITATION.  IN NO CASE, AND NOTWITHSTANDING ANY PROVISION IN THIS CREATIVE SERVICES AGREEMENT TO THE CONTRARY, SHALL EITHER PARTY’S LIABILITY FOR ANY MATTER ARISING OUT OF THE SUBJECT MATTER OF THIS CREATIVE SERVICES AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES ACTUALLY PAID TO MMHMM FROM CLIENT PURSUANT TO THIS CREATIVE SERVICES AGREEMENT.  THE FOREGOING SENTENCE SHALL NOT, HOWEVER: (i) ELIMINATE OR LIMIT THE LIABILITY OF (A) EITHER PARTY WITH RESPECT TO ITS OBLIGATIONS UNDER SECTION 5.2 OF THIS CREATIVE SERVICES AGREEMENT OR (B) CLIENT TO PAY ANY FEES DUE TO mmhmm UNDER THIS CREATIVE SERVICES AGREEMENT; OR (ii) INCREASE ANY LIABILITY OF MMHMM UNDER SECTION 6.1(b) OF THIS CREATIVE SERVICES AGREEMENT.

8.3 Force Majeure.  Neither Party shall be liable for default or for delay in performance of its obligations hereunder other than the payment of money due to cause beyond its control and without its fault or negligence, including but not limited to acts of God or nature, or of the public enemy, changes in applicable law or any other act of any government body, including mandated restrictions on business activities, fires, strikes, freight embargoes or delays of suppliers.  In the event of such delay, performance dates shall be extended for a period equal to the time lost by reason of such delay, provided that either Party may elect to terminate this Creative Services Agreement if any force majeure event continues for a period longer than twenty (20) business days.  Any Party afflicted by a force majeure event shall use reasonable efforts to remove the cause of delay and resume work as soon as possible and to mitigate any performance delay.

9. Term; Termination.

9.1 Term; Termination.  This Creative Services Agreement shall commence as of the Contract Start Date of the first SOW entered into by mmhmm and Customer, and continue until terminated by either Party by providing notice to the other (such period, the “Term”).  Termination of this Creative Services Agreement by a Party shall not prejudice any right or remedy it may have due to any failure of the other to perform under this Creative Services Agreement.

9.2 Effect of Termination.  In the event of termination of this Creative Services Agreement for any reason:

(a) the Parties will use good faith efforts to collaborate with one another and any relevant third-party on the winding-up of any Creative Services then being provided or received in an orderly manner, as soon as practical and in accordance with a schedule reasonably agreed to between the Parties and/or such relevant third party;

(b) the Parties will pay any monies that are then due and owing under this Creative Services Agreement as of the time of termination for Creative Services actually performed and all expenses actually incurred, and shall also promptly pay for all Creative Services and other work that is in-process and being wound-up as of the date of termination, according to the applicable payment terms associated with such Creative Services;

(c) such termination shall, except as otherwise specifically provided in this Creative Services Agreement, immediately terminate all the use of any licenses or other rights granted under this Creative Services Agreement (other than the license granted in Section 4.3); provided, however, that any termination is without prejudice to the enforcement of any undischarged obligations existing at the time of termination;

(d) each Party shall destroy or, upon the other Party’s timely request at the time of termination, return to the other, all copies of the other Party’s Confidential Information; and

(e) any existing subscriptions or orders relating to the mmhmm Services and/or software will remain active and may be renewed unless and until terminated by Customer in accordance with the mmhmm Terms of Service, which separately governs use of the mmhmm Services.

Upon termination of this Creative Services Agreement, Sections 4.1, 4.3, 4.4, 5, 6.2, 6.3, 7, 8, 9.2, 10 and 11 shall survive and continue in effect and shall inure to the benefit of and be binding upon the Parties and their respective successors, and assigns, and termination.

10. Definitions.

When used in this Creative Services Agreement and in each SOW executed hereunder, the capitalized terms listed in this Section 10 shall have the following meanings:

10.1 “mmhmm Methods” means any and all Technology owned or developed by mmhmm (i) prior to the commencement of providing Creative Services to Customer and (ii) during the Term that (a) are of general application to mmhmm’s business and service offerings, the nature of services provided, and not specifically or uniquely developed for a particular Deliverable provided to Customer under a SOW, and (b) that does not include any Customer Confidential Information.

10.2 “Deliverable” means the tangible embodiment of the documentation, work product and/or other item specifically identified in a SOW as a Deliverable, in the form delivered to Customer by mmhmm pursuant to such SOW.

10.3 “Intellectual Property Rights” means any and all rights under or in connection with any patents, patent applications, copyrights, copyright applications, trademarks, trademark applications, service marks, service mark applications, trade names, trade name applications, mask works, trade secrets and other intellectual property rights.

10.4 “Licensed Item” means any tangible or intangible item delivered or produced by mmhmm for Customer pursuant to a SOW that is subject to license or other rights governing Customer’s use, disclosure, or distribution, and is not identified as a Deliverable in such SOW.

10.5 “Creative Services” means all efforts and creative services provided by mmhmm under a SOW during the Term.

10.6 “SOW” means a written addendum to this Creative Services Agreement identified as a Statement of Work or SOW under this Creative Services Agreement containing a description of and terms for the particular Creative Services to be rendered, which shall become legally binding and incorporated as part of this Creative Services Agreement when mmhmm and Customer each signs such document.

10.7 “Technology” means all inventions, works, discoveries, innovations, know-how, information (including ideas, research and development, know-how, formulas, compositions, recipes, processes and techniques, data, designs, drawings, specifications, pricing and cost information, business and marketing plans and proposals, documentation and manuals), computer software, firmware, computer hardware, integrated circuits and integrated circuit masks, electronic,  electrical  and mechanical equipment and all other forms of technology, including improvements, modifications, works in process, derivatives or changes thereof, whether tangible or intangible, embodied in any form, whether or not protectable or protected by patent, copyright, mask work right, trade secret law or otherwise, and all documents and other materials recording any of the foregoing.

10.8 “Third Party IP” means any documentation, works and/or other materials that mmhmm desires to include as part of, or deliver in connection with, a Deliverable (or portion thereof) that is available for license by a third party, including, without limitation, any such item in the public domain or subject to any variety of free, sharing or re-use license terms.

11. Miscellaneous.

11.1 Entire Agreement.  This Creative Services Agreement (including each SOW hereunder) constitutes the entire agreement between the Parties with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, and other agreements regarding the subject matter herein.

11.2 Amendment; Waiver.  This Creative Services Agreement may not be amended or modified, nor may compliance with any condition or covenant set forth herein be waived, except by a writing duly and validly executed by each Party hereto, or in the case of a waiver, the Party waiving compliance.  No delay or omission by either Party in exercising any right under this Creative Services Agreement shall operate as a waiver of that or any other right.  A waiver or consent given by either Party on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.

11.3 Captions.  The captions of the sections of this Creative Services Agreement are for convenience of reference only and in no way define, limit, or affect the scope or substance of any terms of such sections or this Creative Services Agreement.

11.4 Construction.  The Parties hereto confirm that (i) they each had the opportunity to review this Creative Services Agreement with legal counsel of their own choosing and (ii) they understand the terms of, and voluntarily and knowingly execute, this Creative Services Agreement with the intent of being legally bound by the terms hereof.  This Creative Services Agreement is the result of negotiations between the Parties and represents their mutual understandings.  Accordingly, this Creative Services Agreement shall be fairly interpreted in accordance with its terms and without any strict construction against either Party.  Any ambiguity will not be interpreted against the drafting Party.  Whenever the context may require, any pronouns used in this Creative Services Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns and pronouns shall include the plural, and vice versa.

11.5 Notice.  All notices required or permitted under this Creative Services Agreement shall be in writing and shall be deemed effective upon receipt of delivery. Customer agrees that notices shall be deemed effective if sent to the email address(es) listed in the SOW or in Customer’s mmhmm account. All notices to mmhmm shall be to the attention of the Legal Team, with a copy sent via email to legal@mmhmm.app.

11.6 Publicity.  mmhmm may include examples of the Creative Services provided to Customer pursuant to this Creative Services Agreement for the purpose of promoting mmhmm’s client services and, solely for such purpose, Customer hereby grants permission to include the Customer Brand Assets appearing in such examples for such purposes. If Customer does not want to grant this permission, Customer must email legal@mmhmm.app, so that mmhmm may provide a waiver to Customer in writing.

11.7 Governing Law.  This Creative Services Agreement shall be construed, interpreted, and enforced in accordance with the laws of the State of California, USA, without regard to its principles of conflict of laws.  The Parties agree that exclusive jurisdiction and venue of any action with respect to this Creative Services Agreement shall be in a state or federal court located in California, USA, and each of the Parties hereby submits to jurisdiction and venue of such courts for the purpose of any such action.

11.8 Successors and Assigns.  No Party may assign this Creative Services Agreement in whole or in part without the prior written consent of the other Party; provided, however, that either Party may assign this Creative Services Agreement without the written consent of, but upon notice to, the other Party to (i) one of such Party’s affiliates and (ii) an entity succeeding to substantially all the assets and business of such Party by merger or purchase.  Subject to the foregoing, this Creative Services Agreement shall be binding on the Parties and their successors and permitted assigns.

11.9 Severability.  Should any provision of this Creative Services Agreement be or become invalid or unenforceable, the validity or enforceability of the other provisions of this Creative Services Agreement shall not be affected thereby. The invalid or unenforceable provision shall be deemed to be substituted by a suitable and equitable provision which, to the extent legally permissible, comes as close as possible to the intent and purpose of the invalid or unenforceable provision.

11.10 No Third-Party Beneficiaries.  The provisions of this Creative Services Agreement are for the sole benefit of the Parties hereto and will not, except to the extent otherwise expressly stated herein, inure to the benefit of any third party.

11.11 Counterparts; Manner of Delivery.  This Creative Services Agreement will be deemed to have been duly executed and validly delivered and effective for all purposes upon execution of the first SOW between the Parties as of the SOW Contract Start Date.

IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Creative Services Agreement as of the Contract Start Date of the first SOW between the Parties.